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UNCLAS SECTION 01 OF 06 THE HAGUE 001775
SIPDIS
E.O. 12958: N/A
TAGS: KCRMPTERCVISSNARSMIGKFRDCPASPRELEUN
SUBJECT: JULY 7 U.S.-EU JHA CONSULTATIONS - CATS & SCIFA
¶1. SUMMARY: U.S.-EU consultations on a broad range of JHA
issues were held in The Hague on July 7. The Article 36
Committee (CATS for cooperation in police and judicial
matters) met in the morning and the Strategic Committee on
Immigration, Frontiers and Asylum (SCIFA) met in the
afternoon. State, DoJ and DHS participated.
¶2. SUMMARY CONTINUED - CATS (Paras 4-20): Following an
intervention by EB A/S Wayne on terrorist financing
priorities, the EU agreed to provide a summary of what is
being done on terrorist financing under each "pillar." Both
sides also agreed to a meeting of experts to lay the
foundation for cooperation on analyzing frozen accounts and
to explore opportunities for joint training of police on
financial investigations. On the use and sharing of
sensitive information, the EU agreed to ask Member States
about their legal and procedural capacities to investigate,
prosecute and cooperate internationally against anticipatory
crimes (using a G-8 questionnaire as a basis). Both sides
agreed to explore a meeting of experts, perhaps under
Eurojust, on "lessons learned" in fighting terrorism. EU is
pressing Member States to contribute information on their
lost and stolen passports to Interpol, and the Dutch
President promised to urge Member States to complete work on
the bilateral protocols needed to implement the U.S.-EU
Mutual Legal Assistance and Extradition Agreements. The EU
also promised to share with the U.S. an assessment of
policing in the Balkans before it is final. The U.S.
accepted Oct. 25 date for U.S.-EU drugs troika.
¶3. SUMMARY CONTINUED - SCIFA (Paras 21-30): In the
afternoon SCIFA meeting, the EU named priority countries for
migration and asylum purposes, detailed efforts to achieve
reciprocity on visa policy with third countries for the 10
new EU Member States, and described expectations for the EU
Border Management Agency. The U.S. explained the legal
requirements of the Visa Waiver Program (VWP), the new
Immigration Security Initiative (ISI) and US VISIT. Both
sides stressed the technical problems inherent in the prompt
inclusion of biometrics in travel documents. They also
indicated opportunities for cooperation and information
exchange on immigration and asylum source countries,
trafficking in persons, developing a mechanism for an
integrated database for visa lookout systems. END SUMMARY.
----
CATS
----
¶4. DELEGATION: The U.S. delegation consisted of Bruce
Swartz, Deputy Assistant Attorney General, DOJ; Mark
Richard, Senior DOJ Counselor, USEU; Tom Burrows, Senior
Counsel, Office of International Affairs, DOJ; Scott Boylan,
Advisor to the Secretary, DHS; Audrey Adams, CBP Attach,
USEU; Frank Kerber, Narcotics and Legal Affairs Counselor,
USEU; Maren Brooks, State/INL; Drew Mann, Embassy, The
Hague; and John Hoover, Embassy EU Presidency Unit (note
taker). EB A/S Wayne addressed the group on terrorist
financing issues. The EU delegation was chaired by Arie
IJzerman, Director of International Criminal Affairs and
Drugs Policy, Dutch Ministry of Justice, and included, inter
alia, Denise Sorasio and Jean-Louis De Brouwer, both
Directors in the EC's DG JAI, and Gilles de Kerchove of the
European Council Secretariat. Jan Peek of the Netherlands
Embassy in Washington also attended.
-----------------------
Fight against terrorism
-----------------------
¶5. Most of the CATS meeting was spent discussing ways for
the U.S. and EU to cooperate in fighting terrorism.
IJzerman said the recent U.S.-EU summit conclusions were
"rich" in providing areas for follow-up. Swartz agreed the
U.S.-EU Declaration on Combating Terrorism maps out the way
forward and the two sides should use it as a framework for
the discussion of concrete proposals.
¶6. TERRORIST FINANCING: A/S Wayne said there is a need to
operationalize the commitments made on terrorism financing
in the U.S.-EU Summit statement. There has been a great
deal of progress, but forward movement on the next
generation of issues promises to be more difficult. The
U.S. hopes to see universal Member State adoption of
legislation giving them national authority to freeze assets
"without delay," criminalization of financial support for
terrorism, aggressive implementation in identifying
financial sources of terrorism and in taking action against
them, development of ways to reach alternative financial
transfer systems, and adoption of "safe harbor" legislation
- providing that banks are not punished for identifying
accounts and providing information. Wayne expressed the
hope a regular dialogue can be established that includes all
three pillars of the EU and broad representation of agencies
in the U.S., including intelligence, financial and law
enforcement.
¶7. Sorasio replied that freezing of assets following action
by the UN Counterterrorism Committee is in the hands of
Member States. Action to criminalize support of terrorism,
however, has been taken at the EU level. The EU is in the
process of modifying, for the third time, its anti-money
laundering directive, which also relates to the financing of
terrorism, to extend its scope. Member States have been
encouraged to share all terrorism information with Europol.
An EU communication has supported discussion of improving
transparency of legal entities such as charities, which can
be used as transfer systems. The Commission is not yet
ready to propose legislation, however. There also is a plan
to improve training for those police officers responsible
for financial investigations. Sorasio expressed interest in
an expert level exchange of information on those last two
points with the U.S., and Swartz said the U.S. was ready to
participate.
¶8. When asked by Wayne to clarify what measures against
terrorist financing were the responsibility of Ecofin as
opposed to JHA, De Kerchove said he would provide further
information, but also noted some sensitivity of the exchange
of information through the financial intelligence unit. The
EU realizes the need to reform and improve Clearinghouse
operations. Before doing so, De Kerchove cautioned that the
EU might wait until the European Court of Justice renders
decision on pending cases challenging designations by the
Clearinghouse.
¶9. Regarding 2.10 of the U.S.-EU Declaration (analyzing
frozen bank accounts), De Kerchove said the only real EU
authority for such work resided in Europol. Legally, he did
not see any obstacles to cooperation, but the question was
how to proceed - with some Member States expressing concern
about "joint" analysis of the accounts. DOJ/USEU Richard
highlighted several ways the analysis could be conducted -
for example, jointly by U.S. and EU experts working together
or by separate analysis of European accounts by European
experts which would then be shared with the U.S. (and vice
versa). The U.S. desired a mechanism that would avoid
cumbersome treaty requirements for requesting information
and one that could foster agreement on a target relevant to
each party. He noted joint analysis would be more effective
in this regard than separate analysis. De Kerchove and
IJzerman suggested a step-by-step approach with U.S.-EU
experts meeting soon to define the models with an eye toward
achieving agreement on the way to proceed at the JHA
Ministerial meetings in late September.
¶10. "BEST PRACTICES" EXCHANGE: IJzerman said the Commission
had circulated a communication on how to extend the exchange
of sensitive information to Europol to cover all terrorists
(not just those identified through the Clearinghouse
process). The communication also addressed improving
information access. Sorasio said the communication was
"ambitious" in stimulating exchanges and access, and raised
matters such as accessing private data bases, i.e., bank
accounts; being anticipatory rather than merely reactive in
investigating and prosecuting terrorists; trust-building
among the competent authorities; and providing EU-wide
training on top of national training. Swartz applauded the
recognition of the need for pro-active investigations based
on intelligence. He noted a recent seminar at Eurojust on
lessons learned from the Madrid bombing and indicated "best
practices/ lessons learned" seminars and exchanges could be
most helpful in enhancing everyone's capabilities. He also
suggested Eurojust as an existing EU mechanism that was
suited for such exchanges. De Kerchove noted the types of
experts needed for such discussions were broader than those
currently associated with Eurojust. Still, Swartz said,
Eurojust should be able to draw in outside experts as needed
to inform its members.
¶11. LOST & STOLEN PASSPORTS: On sharing data on lost and
stolen passports, Sorasio acknowledged the U.S. had already
provided data to Interpol (remarking, though, that the U.S.
"is in a position to act more quickly") and some EU Member
States had as well, but others needed to see better
arrangements at Interpol, including protective measures.
The Commission has made a proposal to improve sharing and
the plan is to be considered for adoption before the end of
the Dutch Presidency. Richard said EU Member States seemed
to see Interpol as an appropriate international repository
for data and wondered if data on other areas such as
fingerprinting could be included. IJzerman advised that
moving too fast on further proposals might make
implementation of what was already under way more difficult.
All agreed wide dissemination of the information submitted
to Interpol was useful.
¶12. ANTICIPATORY CRIMES: Richard introduced the topic of
anticipatory offenses, i.e., actions that terrorists take in
preparation for committing the actual act of terrorism. To
position governments to prevent terrorism, these
anticipatory offenses have to be criminalized and procedures
set up for sharing of information on them and providing for
extradition. Complicating prosecution of such cases is the
question of intelligence data sharing and use of
intelligence in prosecution while protecting sources and
methods. IJzerman replied that developing information on
the status of such laws and pending legislation by the
Member States was first necessary. IJzerman said the EU was
already compiling that information, and, using the G-8
questionnaire as a foundation, would poll Member States on
their abilities to investigate, prosecute and cooperate
internationally against anticipatory crimes.
¶13. WORKING PARTY ON TERRORISM - 3RD PILLAR GROUP: As
another area for practical cooperation, the two sides agreed
to meet and exchange information on how to handle security
at major events, including but not limited to sporting
events (e.g., Olympics, European Football Championship,
political conventions).
--------------------------------------------- -------
EU-U.S. agreements on mutual legal assistance and on
extradition
--------------------------------------------- -------
¶14. IJzerman said he was aware negotiations continued on
some of the bilateral protocols needed to implement the U.S.-
EU MLA and extradition agreements. The Dutch will encourage
Member States to be positive, and he urged the U.S. to be
flexible. The Presidency will meet with the ten new Member
States before the end of July or in early September to
introduce them to what must be done on these agreements.
Richard said it was still feasible to finish the process
before the end of the Dutch presidency. The U.S. wants to
begin in September with its own meeting with the ten as a
group, but would like to conclude the 15 before starting
with the ten. Richard noted outstanding problems with
Spain, Austria and Portugal. There are significant problems
with Portugal because its Parliament wants to include
elements that go way beyond the original context of the
agreement. Spain and Austria had not even replied to the
U.S. proposal. IJzerman said he would report this
conversation to the July JHA Council and "invite Member
States to take careful note" of what the U.S. said and, at
least, to react.
------------------------------
Organized crime in the Balkans
------------------------------
¶15. IJzerman said the Presidency had organized a group
("Friends of the President") to assess the Balkans and
evaluate how the EU could more effectively combat organized
crime there and how Balkan organized crime affected the EU.
Swartz said Balkan organized crime was also penetrating the
U.S. and believed it was therefore a common problem to be
worked on together. Richard noted a major problem was the
lack of an effective witness protection program in the
Balkans. Witnesses were threatened or "eliminated." There
had been a working group of magistrates from the area, but
the group, having lost strong Serbian leadership, had become
"moribund and docile." Richard informed the EU of upcoming
consultations by U.S. officials (July 16-20) at Europol and
Eurojust to look at models for a witness protection program
in the Balkans. IJzerman said the EU would share its
"Friends of the President" assessment with U.S. experts for
input before it became final.
------------------------------------
November confidence-building seminar
------------------------------------
¶16. Richard said the U.S. had the EU proposal for a
November seminar to familiarize U.S. law enforcement
officials with European systems and would shortly provide
comments to finalize the proposal and seminar's structure.
------------------------
Cooperation with Europol
------------------------
¶17. IJzerman complained that problems in the operation of
Europol liaison officers in Washington as channels for
communication had not yet been resolved. Richard said the
agreement on the liaison officers did not specify how and
where information exchanges were to take place. The way
Europol wanted to operate - transmitting requests through
its liaison officers as representatives of all 25 Member
States - did not work for U.S. agencies. It bypassed
attaches at U.S. embassies in the Member States, yet U.S.
agencies handled requests through the attach channel.
Europol, Richard explained, insisted on using its liaison
officers in a way unfamiliar to DEA and FBI procedures.
IJzerman cited the Secret Service as a positive example of
how a U.S. agency could work with Europol.
¶18. Swartz divided the problem into (a) what kind of U.S.
representative should there be to Europol and (b) what role
were the attaches to play. If the Europol function is to be
the central point of contact for counter-terrorism, which is
a decision for EU Member States, then the FBI might put
somebody there. Richard pressed for flexibility on both
sides. Summing up, IJzerman noted it was important the U.S.
recognized Europol as a lead law enforcement agency and find
practical solutions for engaging with it. Both sides agreed
to pursue cooperation and return to the issue at the next
meeting to review the state of play.
---------
Narcotics
---------
¶19. IJzerman briefly described the status of the
development of the EU drug strategy for the period 2005-
¶2012. The Commission will provide an evaluation of the
existing strategy in October. The draft strategy outline is
to include reduction of both supply and demand, and to
emphasize an "evidence-based policy." i.e., provide for
research and monitoring. EU-wide cooperation and
international cooperation will be important elements. He
promised to keep the U.S. informed as work progressed.
¶20. The U.S. accepted October 25 as the date for the U.S.-
EU drugs troika.
-----
SCIFA
-----
¶21. DELEGATION: Paul Fitzgerald, Coordinator, Border &
Immigration Programs, CA/VO/BIP, led the U.S. discussions,
joined by Boylan, Burrows, Brooks, Adams and Jim Gray,
Acting Consul General, CG Amsterdam. The EU side was led by
Reinier ter Kuile, Director, Immigration Policy, Dutch
Justice Ministry, and included De Brouwer, Jan de Ceuster
and Diederik Paalman.
-------------------------------------
Migration & Asylum Priority Countries
-------------------------------------
¶22. Referring to the "JHA External Relations Multi-
Presidency Programme," ter Kuile stressed the importance of
external relations in immigration and asylum issues, "more
so than in any other part of the JHA program." Besides the
U.S., Russia and the Balkans are priorities with readmission
and visa negotiations underway. Furthermore, the European
Neighborhood Policy also has immigration and asylum
elements. The Commission's De Brouwer added Morocco,
Pakistan, Ukraine and China to the priority countries on
migration and asylum for the EU. By the end of the year the
Commission plans a report on immigration management from
certain third countries, including these.
--------------------------------------------- ----
Border controls and travel documents - biometrics
--------------------------------------------- ----
¶23. Both sides noted biometrics were a work in progress and
felt the experts' seminar held July 1-2 in The Hague (with
U.S. participation) had been a success. De Brouwer reported
the Council had decided in June passports would require
facial recognition capability with fingerprints optional.
Several countries already have fingerprint capability in
their national ID cards, he noted, so they might be expected
to include this in passports as well. He said there were,
however, technical, privacy and interoperability problems,
so becoming operational was a race against time. Boylan
noted DHS Secretary Ridge believed it was vitally important
the chips in new passports be capable of adding additional
biometrics in the future. Should, for example, ICAO modify
its standard to include fingerprints, the new biometric
passports would be capable of absorbing that data. Boylan
and Fitzgerald reported the Administration had requested a
two-year extension of the Oct. 26 deadline (for Visa Waiver
Program countries to have biometrics in their travel
documents), but it appeared Congress would grant only one
year. De Brouwer replied the EU was a strong supporter of a
two-year extension, noting one year was by no means
sufficient to solve the time problem.
--------------------------
Reciprocity in visa policy
--------------------------
¶24. De Brouwer said the EU was pursuing reciprocity with
third countries after its recent enlargement. Venezuela has
agreed to grant equal treatment to the ten new Member States
and Australia will give equal access to electronic visas.
Canada has agreed to review visa requirements "without
prejudging the outcome." The EU will utilize the
flexibility built into its visa program so it is useful and
"not a nuclear weapon." He noted equal treatment of all EU
travelers was a highly political issue in Europe, but he
would not prejudge any Council decision on the matter.
¶25. Fitzgerald replied the U.S. was operating its Visa
Waiver Program (VWP) under legislation, not policy.
Objective legal standards must be met. The U.S. reviews
visa policies with regard to individual countries all the
time. Some countries lose ground while others gain. It is
not, however, an item for multilateral consideration; U.S.
law requires the standards be met on a bilateral basis. He
noted that, with the US-VISIT border entry program in
operation, data on which nationalities over-stay their visas
will be much more complete and timely - and will play a role
in VWP determination. ter Kuile said any EU-U.S. discussion
of the question was a bilateral discussion. He suggested
the U.S. review the eligibility of new Member States for the
VWP and indicate what could be done to help them meet the
criteria. Then, perhaps, the Commission could help them as
well. De Brouwer claimed more and more of what a country
must do to meet the VWP requirements was done at the EU
level, so it was more and more an EU concern. Some of what
the EU requires of its new members in the way of border
controls matches U.S. requirements, for example. He
suggested, if the U.S. could do what Canada did, it would
alleviate pressure from the Member States on the EU to act.
Fitzgerald and Boylan repeated that country eligibility was
constantly reviewed bilaterally, pointed out important
Congressional leaders had recommended eliminating the VWP,
and questioned whether actions taken at the EU level would
effect whether individuals over-stayed their visas.
----------------
US VISIT program
----------------
¶26. Boylan reviewed the status of further implementation
for US VISIT, noting its successful introduction in January.
As previously announced, he said travelers from VWP
countries would start to be enrolled in US VISIT at the end
of September. Although DHS is hoping to avoid start-up
problems by providing ample equipment at key ports of entry,
whether things will go smoothly as did its initial
introduction is unknown until actual implementation. Ter
Kuile and De Brouwer warned that any problem could turn into
a public relations disaster and asked about U.S. plans for a
campaign to explain the necessity for the program to the
European traveling public. They also expressed nervousness
about the possibility of the new European Parliament
complaining about this program, including using their
examination of new Commissioners to comment on it. Boylan
promised to provide information on that campaign.
-----------------------------------
EU Border Management Agency (EUBMA)
-----------------------------------
¶27. De Brouwer said the Commission was preparing a series
of decisions that would allow creation and operation of the
EUBMA in early 2005. It ultimately will control goods as
well as travelers. It is seen as a long-term project. The
Commission is now completing the tender for the system's
operator. Starting in 2006, the EUBMA will have an
information database, but the Commission is considering
including biometric data as well. Fitzgerald and Boylan
reminded the EU of the U.S. proposal for a visa lookout
working group that would assist the EU as it builds its
Schengen Visa Information System over the next few years.
They recommended face-to-face experts meeting in the fall
followed by DVC meetings. De Brouwer said the Commission
would respond by the end of July, though he expected the EU
would propose a wider agenda, "maybe much of what is on our
agenda this afternoon."
----------------------------
Immigration Liaison Officers
----------------------------
¶28. Describing the new Immigration Security Initiative (ISI
- immigration officers placed at overseas airports to assist
host countries and airlines evaluate passengers traveling to
the U.S.), Boylan said the U.S. saw this as a pilot project.
The issue is whether these officers are cost effective.
Preliminary indications are they do not pay for themselves
at every airport. So the question then becomes where to put
them and what to do elsewhere. The Commission said they
would be developing an ILO system and the U.S. would be free
to cooperate.
-------------------------------
Immigration and asylum policies
-------------------------------
¶29. De Brouwer said the EU was now setting a new agenda on
JHA/immigration and asylum policies with the completion of
the 1999-2004 Tampere process. A proposal will be presented
in November. Legislation is being drafted on border control
initiatives; policy papers are being prepared on such
matters as migration and asylum, the relationship between
legal and illegal immigration, and readmission. There was a
June paper on international protection where it was
emphasized it was best to provide refugee protection near
the home country, and protracted disturbances required a
different response than others. It also offered suggestions
for development of an EU-wide resettlement program. There
will be an analysis of third countries that are key for
immigration management. Often, he noted, the U.S. and EU
have the same "clients" in this respect, and he would
welcome exchange and cooperation.
-----------------------------------------
Trafficking in Human Beings (TIHB/TIP)
-----------------------------------------
¶30. De Brouwer pointed out the significance of the EU
recently taking over negotiations in the Council of Europe
on a TIP agreement. It was the first time the Commission
had acted on behalf of all 25 Member States there. Burrows
replied the U.S. welcomed active EU participation on this
issue, though he understood the Council of Europe had
trouble adjusting to the change. The U.S. had seen
important improvements in the draft, though it would be
difficult for the U.S. to become a party as the text stands.
There are still provisions of concern, such as making every
victim benefit available to every victim regardless of
situation or whether a "victim" had been intercepted at the
border and, therefore, never became exploited the way others
had. De Brouwer said the Commission had the same concern
about that provision.
(This cable was drafted by Embassy The Hague and cleared by
A/S Wayne and members of the U.S. delegation.)
SOBEL